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The Divorce Process

The Divorce Process

Disclaimer: No two divorces are alike. Divorces are as different as people. Consequently, the process may vary and the procedures may vary from one client to the next. The following text is a generalized attempt to enable you to have some idea of the divorce process whether it is simplified or more complex. Your case may vary. There is no substitute for specific advice regarding your situation, so please do not hesitate to contact our Law Firm for guidance.

A divorce can generally take two different paths. One path is a more simplified path of least resistance. The other is a more complex process. Your divorce could be anywhere or in between.

Simple Divorce Process / Complex Divorce Process

A "Simpler" Divorce

  • Client/Attorney Informational Meeting: A client will enter the attorney’s office and they will gather information necessary to begin and end the divorce.
  • Divorce Petition & Filing Fee: The attorney will draft an original petition for divorce with the county and pay the filing fee. Texas law requires a mandatory 60 day waiting period from date of filing before you may finalize the divorce.
  • Documents Completed: During this waiting period, other documents are drafted such as a waiver of citation, a final decree of divorce, documents to transfer title to real estate, documents to transfer titles to cars, employers order to withhold child support, qualified domestic relations orders, inventory and appraisements, any discovery documents needed or any other document your particular divorce calls for.
  • Client/Attorney Approval & Approval of Spouse: After all the information the attorney needs is reviewed and incorporated into your legal documents, then you and the attorney may review the paperwork. Changes may or may not be made. Upon approval by the client and the attorney, then the documents are sent to your spouses’ attorney for their review and approval.
  • Possible Negotiations: Typically, the other side may want to modify or change some terms. If there are changes made then you and the attorney will approve the changes or not.
  • Signatures to Finalize Documents: If you approve the changes then all the documents are signed by the attorneys and the clients.
  • Court Date Scheduled: A court date is scheduled after the waiting period.
  • Court Date Appearance: In an agreed divorce, there is typically one attorney and one client who make the actual court appearance to finalize the divorce. The other party does not have to be there but may choose to be there.
  • Divorce Final: Upon the judge’s signature on the final decree you are divorced. The assumption is no party will file a motion for new trial within the following thirty days.

A More Complex Divorce

In a more complex divorce, the initial steps are the same as a simple divorce but you have added steps. For example you may need to have some rules for the divorce established for husband and wife while the divorce is pending and are unable to wait until the divorce is finalized. These temporary rules are known as “temporary orders” and/or “restraining orders.”

Temporary Orders
After the attorney and client meet, the attorney may file a petition for divorce with the court requesting a temporary restraining order to prohibit certain behaviors by your spouse and/or request what is known as “temporary orders”. Typical prohibitions of behavior includes but is not limited to an order to not be violent to the other spouse, prohibit harassment, prohibit hiding or destroying assets, prohibiting taking the children and running, excluding the other from the marital residence, wasting community assets, committing acts which would prevent the court from dividing your future assets, and interfering with a business. There are many other behaviors which may be prohibited too numerous to mention here.

Court Established Rules while Divorce pending
Additionally, some parties may need the court to establish rules while the divorce is pending on which party is going to live in the residence and which party should not, who should have primary custody of the children while the divorce is pending, who should have visitation and describe when visitation should or should not occur, temporary alimony, temporary child support, interim attorney’s fees, apportionment of debts, order a social study to evaluate who should have primary custody of the children, order counseling of the parties and/or children, and order a parent to a parenting class.

The above described is not an exhaustive list but only a very general one.

After temporary orders many things may or may not happen. If one party violates the temporary orders then you may have to make a return trip to court on a motion for enforcement.

Between the filing of the petition and the finalization of the divorce the parties may want to conduct what attorneys call “discovery”. Discovery is the process of each side finding out about the other side. The discovery process can take the form of a Rule 194 Disclosure, Written Interrogatories, Request for Production, Depositions, and other vehicles available through the Texas Rules of Civil Procedure.

After all parties have gathered all the information they desire, then inventory and appraisements may be drafted. “Inventory and Appraisement” is a legal document which identifies the assets and liabilities of the parties and the separate property of the parties. Additionally, one party or both may have some reimbursement claims from the community or separate estates. The parties and the attorneys may negotiate between themselves custody agreements, a division of the property and debts and any other matter particular to their divorce. If the parties reach and agreement, then a final proposed agreed decree of divorce is drafted up and signed by all parties and the attorneys. Thereafter one or both go to court to finalize the divorce. If you are unable to reach an agreement then one party may elect to go to mediation or final trial.

The parties and/or the Court may request you go to mediation to settle your divorce. Mediation happens when the parties are at an impasse. A mediator is usually an attorney whose sole job is help you work out a settlement. They do not represent either party and are neutral. The mediator is not a judge nor may be called to court to testify. If you work out a mediated settlement then the settlement is drafted up and signed by the parties and the attorneys. Then a agreed decree is drafted up consistent with the mediated settlement. Thereafter the parties go to court and finalize their divorce.

Final Trial
If negotiations conferences fail, if mediation fails, and all other attempts to settle fail, then the parties may have the judge make a ruling on all issues the parties were unable to agree on. This is known as a final trial. In order for the judge to hear your case and make a decision, the final trial must be scheduled with the judge. The scheduling may require the attorney to go to court and request a “docket call” or a “pretrial conference”. These procedures are designed to give all parties and the Court fair notice the date or dates the trial will take place on and to set other court ordered or rule deadlines. On the final trial date all parties appear in court and give their side of the story including witnesses, experts, offer exhibits, offer discovery documents, and do anything the parties and their respective attorneys believe is appropriate to present the client’s case in the most favorable light. After the trial, the judge makes a ruling. The attorneys will go back to their office and draft a final decree which memorializes their understanding of the judge’s ruling. This final decree is circulated between the parties and the attorneys and then goes to the judge for final signature.

This page is intended for general informational purposes only. Please be sure to consult with your attorney for any and all steps and details that need to be addressed in your particular situation. If you do not have an attorney, please contact Randy Essenburg for a consultation meeting so that you can be protected, advised, and guided appropriately.